California Women and Families File Injury Lawsuit in Federal Court Against Pacific Fertility Clinic Over Mishandling of Thousands of Preserved Eggs and Embryos

SAN FRANCISCO—(BUSINESSWIRE)—On April 17, 2018, Lieff Cabraser filed a Class Action Complaint in federal court in San Francisco on behalf of women who stored their frozen eggs and embryos against Pacific Fertility Center and Prelude Fertility, Inc., alleging, among other things, negligence, negligent infliction of emotional distress, breach of contract, conversion, violation of unfair competition law, and premises liability relating to defendants’ March 2018 mishandling of preserved eggs and embryos at their San Francisco cryogenic facility.

As the Complaint notes, plaintiffs and the class members entrusted Pacific Fertility and Prelude Fertility (”Pacific Fertility”) with safeguarding their frozen eggs and embryos at their San Francisco facility to preserve their reproductive options for future use. On March 4, 2018, Pacific Fertility became aware of temperature elevations in a storage tank containing plaintiffs’ and the other class members’ eggs and embryos. However, it was not until a week later, on March 11, 2018, that plaintiffs and other class members received a boilerplate email from Pacific Fertility Center stating that a failure in a storage tank known as “Tank 4” may have damaged thousands of frozen eggs and embryos, affecting more than 400 families.

Pacific Fertility represents that its egg and embryo freezing and storage services are safe. Its marketing materials tout that “Eggs can be safely stored for as long as you need them. There is no current evidence that suggests they deteriorate with time, so you can take as long as you need to prepare for your future family” and “Set it and forget it until you’re ready. When you are ready to start your family, frozen eggs are thawed and combined with sperm to create embryos.” Pacific Fertility further represents on its website that “there is no limit to how long cells remain viable in the frozen state. We have had some patients return to thaw embryos after more than 10 years and the embryos were no different than when they were frozen. The temperature of liquid nitrogen is so cold that scientists think that all biological activity is stopped and that there are no issues with very long term storage.”

These services are highly expensive — Pacific Fertility’s first cycle of egg freezing, retrieval, and storage for a year costs over $8,000. Medication, consultations and other services add thousands more, as do additional cycles.

The Complaint alleges that Pacific Fertility’s breach of plaintiffs and other class members’ trust through their gross mishandling of eggs and embryos has caused panic, confusion, anxiety, devastation, and irreparable damage to hundreds of prospective parents and families. The Complaint further alleges that since the incident, Pacific Fertility has not taken appropriate affirmative efforts to provide clear, consistent communication to those affected, or offer support services. Instead, plaintiffs and class members “have received vague and often conflicting information from different staff members, leaving victims confused and even more anxious, during an already emotionally difficult time.”

In addition, plaintiffs were told that Pacific Fertility could not know for certain whether any of the eggs were irretrievably damaged until they were thawed and fertilized. Since re-freezing and re-thawing would add additional risks to the health of the embryos, plaintiffs were told that once an egg was thawed and fertilized, they would have to also be prepared to go through with an IVF transfer at that time. In other words, to determine whether the eggs remained viable despite having been exposed to unsafe conditions, plaintiffs would have to actually go ahead and try to get pregnant with those eggs, or arrange for surrogate mothers to do so. These options would entail considerable cost and risk, and would be fraught with fear, stress, anxiety, and likely heartache.

Plaintiffs have thus been left in a stressful fog of uncertainty, anxious about whether and how they should proceed to preserve their reproductive future. Plaintiffs also feel pressure to move forward with another round of retrievals to try to mitigate their losses, and stress related to the significant additional cost, burden and uncertainty from further IVF rounds. Indeed, for some plaintiffs providing additional eggs for retrieval is no longer an option, thus leaving them bereft of any opportunity to have a biological child.

Lieff Cabraser partner Sarah R. London, who filed the complaint on behalf of the plaintiffs, stated, “Pacific Fertility’s mishandling of the eggs and embryos is irreparable and devastating. Not only is retrieving and freezing eggs an expensive, time-consuming, physically burdensome and often painful process that can cost $20,000 or more, the value and importance of the eggs and embryos that plaintiffs entrusted to Pacific Fertility’s care is extraordinary. Heartbreakingly, for some victims, the eggs and embryos in Tank 4 were the last and only chance to have a biological child. For those who can undergo additional rounds, they may face a lower chance that those eggs or embryos will lead to a successful pregnancy.”

Lexi J. Hazam, another Lieff Cabraser partner representing the plaintiffs, notes, “Pacific Fertility understands how daunting the IVF process can be. According to its website, ‘the time and energy that is needed, both physically and emotionally can drain even the staunchest crusader.’ Nevertheless, after the incident, PFC did not offer additional support services or counseling. Aside from a boilerplate email, PFC has not provided further written communication to many affected clients. The information provided over the phone and in person has been vague and often conflicting, and inconsistent with what others have been told. PFC’s failure to offer compassionate support services and to communicate clearly and consistently with victims has caused further confusion, pain and distrust.”

The lawsuit was filed April 17, 2018 in federal court in the Northern District of California. The plaintiffs, individually and on behalf of the other class members who entrusted Pacific Fertility to store their eggs and/or embryos that were in Tank 4, seek compensatory damages, equitable relief, and other remedies as a result of Pacific Fertility’s misconduct.

About Lieff Cabraser

Recognized as “one of the nation’s premier plaintiffs’ firms” by The American Lawyer, Lieff Cabraser Heimann & Bernstein, LLP is a seventy-plus attorney law firm with offices in San Francisco, New York, and Nashville. Since our founding 46 years ago in 1972, Lieff Cabraser has litigated and resolved hundreds of class action lawsuits and thousands of individual cases, including the successful representation of thousands of women across America in individual lawsuits due to the injuries they suffered from defective medical devices and defective prescription drugs.

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